Court of Appeals Opinions

Format: 06/23/2017
Format: 06/23/2017
Brenda Ramsey v. Cocke County, Tennessee, Et Al.
E2016-02145-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Richard R. Vance

In this wrongful death action, the decedent’s mother filed suit alleging that the county emergency communications district and the city police department refused to send help when the plaintiff called to report that her daughter was making suicidal threats and that, as a result, her daughter committed suicide later the same night. The trial court granted summary judgment in favor of the defendants on the ground that the decedent’s suicide constituted an intervening, superseding cause. Viewing the evidence in the light most favorable to the plaintiff, we conclude that the decedent’s suicide was foreseeable and that the special duty exception to the public duty doctrine applies. We, therefore, reverse the trial court’s grant of summary judgment and remand for further proceedings.

Cocke County Court of Appeals 06/23/17
Phillip Neal Kennedy v. Jane Kennedy
M2016-01635-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Michael W. Binkley

This post-divorce appeal concerns the father’s petition to modify the residential schedule in an agreed parenting plan. Following a hearing, the trial court found that a material change in circumstances necessitated a change in the schedule. The court modified the plan by awarding the father additional co-parenting time. The court also entered a new child support order and directed the mother to remit payment for retroactive child support and the father’s attorney fees. The mother appeals. We affirm.

Williamson County Court of Appeals 06/23/17
The Metropolitan Government of Nashville And Davidson County v. Delinquent Taxpayers As Shown On The 2006 Real Property Tax Records, et al
M2016-02220-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Claudia Bonnyman

Delinquent taxpayer appeals the denial of his Tenn. R. Civ. P. 60.02(3) motion to set aside a 2009 final decree confirming a tax sale of his property as void on due process grounds. Having determined that the doctrine of collateral estoppel precluded the delinquent taxpayer from relitigating the issue of notice, we affirm.

Davidson County Court of Appeals 06/23/17
J.P.Morgan Chase Bank, N.A. v. Gary Eldon Finley, et al
M2016-01178-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor J. B. Cox

A bank filed a complaint to reform a Deed of Trust to correct a scrivener’s error in the legal description of a parcel of property in order to foreclose on the property. While the litigation was pending, the mortgagors conveyed title to the property to a third party, who claimed to be a bona fide purchaser for value without notice. The trial court concluded that the third party did not qualify as a bona fide purchaser because he was aware of the bank’s litigation when he obtained title to the property. We affirm the trial court’s judgment.

Marshall County Court of Appeals 06/22/17
Jerry Faerber, Et Al. v. Troutman & Troutman, P.C., Et Al.
E2016-01378-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Don R. Ash

Appellees entered into a contract for the purchase of an undeveloped lot in a planned unit development. Appellants, an attorney and his law firm, prepared closing documents, including a warranty deed and settlement statement. The warranty deed included language that the property was unencumbered, and the settlement statement provided for payoff of the first mortgage and for the purchase of title insurance. Appellees later discovered that Appellants had failed to procure release of the first lien and had also failed to procure title insurance. The property was foreclosed, and Appellees filed suit against Appellants for negligent misrepresentation and violation of the Tennessee Consumer Protection Act. The trial court found Appellees liable on these claims. We concluded that the Tennessee Consumer Protection Act does not apply to Appellants, who were engaged in the practice of law in the preparation of the closing documents. Accordingly, we reverse the trial court’s award of attorney fees and costs pursuant to the Tennessee Consumer Protection Act. The trial court’s order is otherwise affirmed.

Campbell County Court of Appeals 06/22/17
Terry Joe McBroom v. Kelly Loretta Folkers McBroom
W2016-01276-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Jim Kyle

In this divorce case, Terry Joe McBroom appeals the trial court’s award of alimony in futuro to Kelly Loretta Folkerts McBroom in the amount of $980 per month for three years or until Husband began drawing his retirement pension. The trial court ordered that once Husband began drawing his pension, which the parties agree will happen no later than April of 2019, the amount of spousal support will be reduced to $720. The court further ruled that Husband’s support obligation would cease when Wife began drawing Social Security benefits. Finding no abuse of discretion, we affirm.

Shelby County Court of Appeals 06/21/17
In Re: Skylar P., Et Al.
E2016-02023-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Kurt A. Benson

Mother appeals the trial court’s decision to terminate her parental rights to two children on the grounds of: (1) abandonment by failure to provide a suitable home; (2) abandonment by willful failure to provide support; (3) substantial noncompliance with the requirements of the permanency plans; and (4) persistence of conditions that precipitated the children’s removal from Mother’s custody. The trial court found by clear and convincing evidence that termination of Mother’s parental rights was in the best interest of the children. We reverse in part and affirm in part.

Bradley County Court of Appeals 06/21/17
In Re Jase P.
E2016-02519-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Timothy E. Irwin

This appeal arises from the termination of a father’s parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition against Anthony G. (“Father”) in the Juvenile Court for Knox County (“the Juvenile Court”) seeking to terminate Father’s parental rights to his son, Jase P. (“the Child”). Father had been incarcerated and unable to parent the Child since the Child’s birth. After a trial, the Juvenile Court terminated Father’s parental rights on the grounds of wanton disregard and various grounds coming under the putative father statute at Tenn. Code Ann. § 36-1- 113(g)(9)(A). Father appeals. We affirm all grounds for termination found against Father. We further affirm that termination of Father’s parental rights is in the Child’s best interest. We, therefore, affirm the judgment of the Juvenile Court in its entirety.

Knox County Court of Appeals 06/21/17
Tracy Lynn Hallums v. Bruce Alan Hallums
M2016-00396-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge John Thomas Gwin

In this divorce action, the trial court awarded alimony in futuro and attorney’s fees to Wife; Husband appeals both awards. Concluding that the court did not make adequate findings as to whether rehabilitative or transitional alimony was feasible, we vacate the award of alimony in futuro and remand for further consideration of the nature and duration of the alimony award; we affirm the trial court’s award of attorney’s fees to Wife; and we decline to award attorney’s fees to either party for the appeal.

Wilson County Court of Appeals 06/21/17
John F. Pinkard, M.D. v. HCA Health Services of Tennessee, Inc. D/B/A Summit Medical Center
M2016-01846-COA-R9-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joseph P. Binkley, Jr.

We granted this interlocutory appeal to determine whether Tenn. Code Ann. § 68-11-272(c)(1) of the Healthcare Quality Improvement Act (“HCQIA”), as applied to the facts of this case, violates the separation of powers provisions in the Tennessee Constitution. Plaintiff, a physician whose medical staff privileges were terminated by Summit Medical Center, sued the hospital, alleging, inter alia, that it acted in bad faith and with malice during the peer review process. Following a lengthy discovery process, the hospital filed a motion for summary judgment asserting, inter alia, that Plaintiff’s anticipated evidence was confidential, privileged, and inadmissible under the HCQIA because it was derived from the activity of a Quality Improvement Committee (“QIC”). At the same time, the hospital filed a motion in limine to exclude all records of quality improvement activity pursuant to the evidentiary privilege under Tenn. Code Ann. § 68-11-272(c)(1). After ascertaining that Plaintiff intended to rely on QIC evidence, the trial court ruled that the peer review privilege could not be waived, and that Tenn. Code Ann. § 68-11-272(c)(1) violated the separation of powers provisions because it deprived the court of its inherent authority to make evidentiary decisions affecting “the heart of this case.” This Tenn. R. App. P. Rule 9 interlocutory appeal followed. We agree with the trial court’s ruling that the privilege cannot be waived. However, we disagree with the trial court’s ruling that Tenn. Code Ann. § 68-11-272(c)(1), as applied to the facts of this case, violates the separation of powers provisions in the Tennessee Constitution. This is because the General Assembly created the evidentiary privilege to effectuate one of its powers, the enactment of legislation that promotes the safety and welfare of our citizens. To that end, the primary concern of the challenged legislation is not to create court rules, but to promote candor within a hospital’s quality improvement process to ensure effective evaluation measures. Furthermore, Tenn. Code Ann. § 68-11-272(c)(2) provides an “original source” exception to the privilege whereby documents not produced specifically for use by a QIC, and are otherwise available from original sources, are both discoverable and admissible into evidence even if the information was presented during a QIC proceeding. Thus, the privilege is reasonable and workable within the framework of - 2 - evidentiary rules already recognized by the judiciary. For these reasons, we reverse and remand for further proceedings.

Davidson County Court of Appeals 06/21/17
Western Farm Products, LLC, Inc. v. Sumner County, TN , et al
M2015-02003-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Joe H. Thompson

A property owner who wished to construct and operate a quarry sought a declaratory judgment that a Sumner County Zoning Resolution, which was alleged to exclude quarrying and mining activities, is unconstitutional and in violation of the Tennessee zoning enabling statutes. A group of adjoining property owners were permitted to intervene in the proceeding, and the court granted summary judgment to the county and adjoining property owners. The property owner now appeals. We find that the evidence relied upon by the property owner does not establish that the ordinance at issue prohibits all quarrying activities and affirm the trial court’s judgment.

Sumner County Court of Appeals 06/19/17
Ronald Stringer v. Alecia Stringer
M2016-01314-COA-R3-CV
Authoring Judge: Judge Steven Stafford
Trial Court Judge: Judge Philip E. Smith

This post-divorce case concerns parental relocation.  Mother, the primary residential parent, sought to relocate to Texas, citing an employment offer.  Father objected to the relocation, arguing that the move had no reasonable purpose and that Mother’s real purpose for relocating is to be closer to her boyfriend. The trial court denied mother’s request to relocate based on mother’s perjury in the trial court’s presence and on the finding that the real purpose of mother’s proposed move is to be closer to her boyfriend. We reverse the trial court’s decision because we determine that father failed to carry his burden of proof.

Davidson County Court of Appeals 06/16/17
Amy Ausenbaugh Sturdivant v. William Eugene Sturdivant
M2016-00976-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

Father appeals the trial court’s denial of his request for equal parenting time with the parties’ children and failure to grant father a fault-based divorce based on mother’s infidelity. Discerning no error, we affirm.

Montgomery County Court of Appeals 06/15/17
Tennessee Firearms Association, et al. v. Metropolitan Government of Nashville and Davidson County, Tennessee
M2016-01782-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Carol L. McCoy

This appeal involves an attempt to challenge the legality of a gun show ban that was adopted for the Tennessee State Fairgrounds. The trial court dismissed the complaint on numerous alternative grounds. We affirm.

Davidson County Court of Appeals 06/15/17
In Re Estate of Bessie Adcock Bingham
M2016-01186-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor James B. Cox

This appeal arises from the probate administration of an estate. The principal issues concern a certificate of deposit and the trial court’s approval of attorney fees paid from the estate to the estate’s first attorney. The trial court awarded the certificate of deposit to the decedent’s son, finding that the certificate of deposit passed to the son as the surviving joint tenant. With respect to attorney fees paid to estate’s first attorney, the trial court approved fees in the amount of $12,400 and disapproved fees in the amount of $7,600. The decedent’s daughter appealed. Finding no error, we affirm.

Bedford County Court of Appeals 06/13/17
Church of The First Born Of Tennessee, Inc. v. Tom Slagle, et al.
M2014-01605-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Charles K. Smith

A dispute among members of a church arose over control of the church. One group of members incorporated and then filed suit against individual members of the church seeking to quite title to certain real property. The parties filed cross-motions for summary judgment. In granting the individual church members’ motion and denying the corporation’s motion, the trial court found the church to be congregationally governed with a clear and established practice for handling real property transactions. We conclude that the corporation lacked standing to bring the action and that the corporation’s case should be dismissed on that basis. Therefore, we reverse.  

Trousdale County Court of Appeals 06/13/17
Sonya C. Franklin Sardon v. Troy Eugene Sardon
M2015-01672-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Phillip R. Robinson

Post-divorce proceeding wherein Mother petitioned the court for a modification of the parenting plan and to increase Father’s child support obligation; following a hearing, the court granted her petition. Father appeals the upward deviation to his basic support obligation to pay a portion of the children’s extracurricular activities, the failure to give Father credit for additional funds he paid Mother each month, and the award of attorney’s fees to Mother. Upon consideration of the record, we discern no error and, accordingly, affirm the judgment of the trial court.  

Davidson County Court of Appeals 06/13/17
Knox County, Tennessee, et al. v. Delinquent Taxpayers, et al.
E2016-01750-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor John F. Weaver

This case involves an attempt by Omer G. Kennedy and Angela Helms (landowners) to exercise their right of redemption with respect to their property sold at a delinquent tax sale. Jon Johnson (tax sale purchaser) bought the property on January 13, 2015. Within the one-year redemption period, landowners paid $37,892.81, the amount they thought was required to redeem the property. Tax sale purchaser filed a motion for additional funds, consisting of payments he had made for insurance on the property and interest, under Tenn. Code Ann. § 67-5-2701 (Supp. 2016). The trial court granted the motion in an order entered January 11, 2016. The order gave landowners 30 days to pay the additional amount. Because notice of the order was not sent to their last known address, landowners did not receive the notice until after the 30 days had passed. They paid the additional amount of $5,869.43 on February 18, 2016. Tax sale purchaser moved the court to deny the redemption, arguing that the payment was not timely. The trial court denied the motion, holding that its order of January 11, 2016, was void because it was not effectively entered under Tenn. R. Civ. P. 58. and not effectively served under Tenn. R. Civ. P. 5. Alternatively, the trial court ruled that landowners were entitled to relief for excusable neglect under Tenn. R. Civ. P. 60. Tax sale purchaser appeals. We affirm.

Knox County Court of Appeals 06/13/17
Michael G. Breakey, et al. v. Sequatchie County, Tennessee, et al.
M2016-01504-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jeffrey F. Stewart
Appellees/taxpayers filed suit against Sequatchie County, seeking to set aside the tax sale of their property. As grounds, Appellees alleged that they were not afforded due process and were never notified of the delinquent tax action. The trial court ruled in favor of the taxpayers and set aside the tax sale due to lack of notice sufficient to provide due process. Sequatchie County appealed. Discerning no error, we affirm.
 
Sequatchie County Court of Appeals 06/12/17
In Re P.T.F.
E2016-01077-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Timothy E. Irwin

In this termination of parental rights case, the Department of Children’s Services filed a petition to terminate the parental rights of T.W.B. (mother) with respect to her child, P.T.F. The trial court found clear and convincing evidence of two grounds supporting termination. By the same quantum of proof, the trial court held that termination of mother’s parental rights is in the best interest of the child. Mother appeals. We affirm.

Knox County Court of Appeals 06/12/17
Rhonda Sue Griffis Grubb v. James Wesley Grubb
E2016-01851-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Frank V. Williams, III

This appeal arises from a divorce. Rhonda Sue Griffis Grubb (“Wife”) filed for divorce against husband James Wesley Grubb (“Husband”) in the Chancery Court for Roane County (“the Trial Court”). Trial in this matter was bifurcated. The validity of the parties’ antenuptial agreement (“the Agreement”) was tried first. The Trial Court found that the provision in the Agreement purporting to cap Wife’s alimony was unenforceable but otherwise upheld the Agreement. Later, trial was conducted on the remaining issues in the case. Citing her adultery and a clause in the Agreement, the Trial Court declined to grant Wife alimony. However, the Trial Court awarded Wife a substantial portion of the marital estate. The Trial Court also ruled upon child support, parenting time, and education for the parties’ two daughters. Husband appealed to this Court raising numerous issues. Wife raised additional issues of her own. We find and hold that Husband failed to carry his burden as to the validity of the Agreement. As to the second stage of this bifurcated matter, we find that the Trial Court’s final judgment is devoid of factual findings to such a degree that we cannot effectively review the remaining issues in this case. We reverse as to the validity of the Agreement. We vacate and remand for further proceedings as necessary and for entry of a new final judgment containing detailed factual findings and conclusions of law as to the remaining issues.

Roane County Court of Appeals 06/09/17
State ex rel. Appaloosa Bay, LLC et al. v. Johnson County, Tennessee, et al.
E2016-01163-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge John C. Rambo

Two owners of separate lots in a planned residential subdivision of twenty lots brought this action against the Johnson County Regional Planning Commission and several state entities after the subdivision’s developer went into bankruptcy and development of the subdivision was halted. When the developer had earlier posted a performance bond securing the completion of the subdivision’s infrastructure, the planning commission had approved the subdivision plat, although infrastructure, including roads and utilities, had not been completed. After developer’s bankruptcy, the State of Tennessee bought the land comprising all of the subdivision lots, except the two owned by the plaintiffs. All of the remaining land in the intended subdivision, except for several other lots purchased by individuals before the bankruptcy, is now part of the Doe Mountain Recreation Area — an entity subsequently created by the State. Plaintiffs brought this action for breach of contract between developer and the planning commission. Plaintiffs also asked the trial court to issue a writ of mandamus compelling the county to complete the proposed subdivision infrastructure. The trial court granted the defendants summary judgment. The plaintiffs appeal. We affirm.

Johnson County Court of Appeals 06/09/17
Jessica Marcel Broadnax v. Quentin Elliott Lawrence
E2016-01176-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge J.B. Bennett

This case is again before this Court after being remanded to the Circuit Court for Hamilton County (“the Trial Court”) for a determination of whether it was in the best interest of the parties’ minor child (“the Child”) to relocate to New Jersey with Jessica Marcel Broadnax (“Mother”). Mother appeals the Trial Court’s May 5, 2016 order upon remand, which found, inter alia, that it was in the best interest of the Child to remain with Quentin Elliott Lawrence (“Father”) and not to move with Mother to New Jersey. We find and hold that the evidence in the record on appeal does not preponderate against the Trial Court’s findings. Finding no error on the part of the Trial Court, we affirm.

Hamilton County Court of Appeals 06/08/17
Raymond Cass Ballard v. Gertrude Cayabas
W2016-01913-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Tony Childress

This is an appeal arising out of a petition to change the primary residential parent and a petition for civil and criminal contempt. The notice of appeal for the criminal contempt finding was not timely filed, and the appeal is therefore dismissed as to the criminal contempt. With respect to the remaining issues, we remand this matter to the trial court for the limited purpose of conducting an evidentiary hearing regarding the timeliness of this appeal.

Dyer County Court of Appeals 06/08/17
Ally Financial v. Tennessee Department of Safety & Homeland Security
M2016-01894-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Claudia Bonnyman

The Tennessee Department of Safety and Homeland Security forfeited a finance company’s interest in a vehicle after determining that the finance company failed to timely file a claim to contest the forfeiture after receiving notice. The finance company thereafter filed a petition for judicial review. The trial court reversed the forfeiture on the basis that the Tennessee Department of Safety and Homeland Security failed to prove that it sent proper notice to the finance company. We vacate the judgment of the trial court and remand for further proceedings before the administrative agency. 

Davidson County Court of Appeals 06/07/17